Circular No. 04/2014/TT-BCT dated January 27, 2014, elaborating the implementation of the Decree No. 187/2013/ND-CP which elaborates the regulations on international trade of Law on commerce

CIRCULAR

ELABORATING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE NO. 187/2013/ND-CP DATED NOVEMBER 20, 2013, WHICH ELABORATES THE REGULATIONS ON INTERNATIONAL TRADE OF LAW ON COMMERCE

Pursuant to the Government’s Decree No. 95/2012/ND-CP dated November 12, 2012 defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;
Pursuant to the Government’s Decree No. 187/2013/ND-CP dated November 20, 2013, which elaborates the regulations on international trade of Law on Commerce;
Pursuant to the Prime Minister’s Decision No.41/2005/QD-TTg dated March 02, 2005 on promulgation of the Regulation on Licensing goods import;
At the request of the Director of Export and Import Administration;
The Minister of Industry and Trade promulgates a Circular to elaborate the implementation of the Government’s Decree No. 187/2013/ND-CP dated November 20, 2013, which elaborates the regulations on international trade of Law on Commerce.
Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application
1. This Circular elaborates the implementation of some Articles of the Government’s Decree No.187/2013/ND-CP on export, import, processing, and transport of goods.
2. This Circular is applied to Vietnamese traders and other entities that engage in the activities regulated by the Law on Commerce.
Article 2. Entitlement to export and import
1. Traders without foreign investment (hereinafter referred to as traders), including:
a) Any company established under the Law on Enterprises, the Law on Cooperatives, or the Law on Investment;
b) Any business household established and registered under the Government’s Decree No.43/2010/ND-CP dated April 15, 2010 on business registration, which is allowed to export, import, process, or trade in goods under the law and the Government’s Decree No. 187/2013/ND-CPregardless of the business lines in the Certificate of Business registration.
2. Any foreign-invested trader in Vietnam that imports, exports, or process goods under the Government’s Decree No. 108/2006/ND-CP dated September 22, 2006 of the government providing guidance on implementation of the Law on Investment, the Government’s Decree No.23/2007/ND-CP dated February 12, 2007 providing guidance on the regulations of the Law on Commerce on goods trade and relevant activities of foreign-invested companies in Vietnam, the guiding documents of such Decrees, the roadmap announced by the Ministry of Industry and Trade, and relevant laws.
Chapter II

EXPORT AND IMPORT MANAGEMENT

Article 3. Goods banned from export and import
1. The goods banned from export and import are announced by Ministries and ministerial agencies in the List of goods banned from export and import in Appendix I to the Decree No.187/2013/ND-CP and relevant legislative documents.
2. The Ministry of Industry and Trade issues a List of used goods banned from import in Appendix I to this Circular.
3. When importing goods in the List of goods banned from import to serve scientific research or as humanitarian aid according to Clause 3 Article 5 of the Decree 187/2013/ND-CP the following procedure must be followed:
a) If goods are imported to serve scientific research: The scientific research organization, or the trader that needs to import goods to research into product development (hereinafter referred to as applicant) shall send an application by post to the Ministry of Industry and Trade (Export and Import Administration) at 54 Hai Ba Trung Street, Hoan Kiem District, Hanoi. The application consists of:
– 01 copy of the decision on Establishment, certificate of investment, or Certificate of Business registration that bears the certification and seal of the applicant.
– An original of the written request for permission for import, specifying the name, HS code, quantity, and purpose of each article; certification of the accuracy of such information.
– 01 original of the report on the adherence to the license issued previously (except for the first import).
Within 7 working days from the day on which the satisfactory application is received, the Ministry of Industry and Trade shall issue a License for import to the applicant. If the application is rejected, the Ministry of Industry and Trade shall make a written response and provide explanation.
b) If goods are imported as humanitarian aid: The Ministry of Industry and Trade shall consider the written request made by a competent authority, specifying the name, HS code, quantity, and purpose of each article, and the certification of the accuracy of such information.
Within 7 working days from the day on which the satisfactory application is received, the Ministry of Industry and Trade shall make a written response. If the application is rejected, the Ministry of Industry and Trade shall also make a written response and provide explanation.
Article 4. Import of goods that affect national defense and security
1. A List of articles that affect national defense and security compiled by the Ministry of Industry and Trade is provided in Appendix II to this Circular.
2. Every importer of the articles in the List mentioned in Clause 1 of this Article shall send an application to the Ministry of Industry and Trade (Export and Import Administration) by post, which consists of:
a) 01 copy of the Certificate of investment or Certificate of Business registration that bears the certification and seal of the trader.
b) 01 original of the written request for permission for import made by the importer, specifying the name, HS code, quantity, and value of every article.
c) A written approval of the import made by the Ministry of Public Security or the Ministry of National Defense.
Within 7 working days from the day on which the application is received, the Ministry of Industry and Trade shall issue the License for import to the trader. If the application is rejected, the Ministry of Industry and Trade shall make a written response and provide explanation.
3. When goods in the List mentioned in Clause 1 of this Article is imported to serve national defense and security, regulations of the Ministry of Public Security or the Ministry of National Defense shall apply.
Article 5. Goods imported under tariff-rate quota
1. List of goods imported under tariff-rate quotas

^(*) Notes: not including fertilized eggs for incubation of codes 04071100, 04071910, 04071990.
2. Determination and announcement of tariff-rate quotas
a) The Ministry of Agriculture and Rural Development shall determine the tariff-rate quotas on salt, poultry eggs, refined sugar, and raw sugar.
b) The Ministry of Industry and Trade shall determine the quotas on unmanufactured tobacco.
c) Based on relevant international agreements, the tariff-rate quotas determined annually, the demand and supply, the Ministry of Industry and Trade shall officially announce annual tariff-rate quotas on the goods in the list of goods imported under tariff-rate quotas and decide the method of regulating import of each article after seeking opinions from the Ministry of Finance and relevant Ministries.
3. Tariff-rate quota principles
a) The articles in the above list of goods imported under tariff-rate quotas may be imported under the license for import in order to apply preferential import tax rates within tariff-rate quotas.
b) The tax rates beyond the tariff-rate quotas shall apply to the articles in the list of goods imported under tariff-rate quotas without licenses issued by the Ministry of Industry and Trade. Separate regulations of the Ministry of Industry and Trade shall apply to unmanufactured tobacco imported for manufacture of cigarettes beyond the tariff-rate quota.
c) Quantities, weight, and values of the articles in the list of goods imported under tariff-rate quota for manufacture of exported goods or processing exported goods are not included in the annual tariff-rate quotas announced by the Ministry of Industry and Trade.
4. The Ministry of Industry and Trade shall issue licenses for import to the traders eligible to import the goods in the list of goods imported under tariff-rate quotas, in particular:
a) Salts: the traders that need to use salt for manufacture according to certification of relevant regulatory bodies.
b) Unmanufactured tobacco: the traders that hold licenses for cigarette manufacture issued by the Ministry of Industry and Trade and need to use unmanufactured tobacco for manufacture of cigarettes according to certification of the Ministry of Industry and Trade.
The general companies of the business lines shall distribute quotas to their subsidiaries.
c) Poultry eggs: the traders holding the Certificates of Business registration or Certificates of Business registration and need to import poultry eggs.
d) Refined sugar and raw sugar: subject to decisions of the Ministry of Industry and Trade that is made annually after seeking opinions from relevant Ministries.
5. Procedure for issuing licenses for import under tariff-rate quota
The Ministry of Industry and Trade shall issue licenses for import under tariff-rate quota according to the annual tariff-rate quotas imposed by other Ministries, the import of the previous year, and the traders’ registrations.
Every trader that wishes to apply for import quota allocation shall send an application to the Ministry of Industry and Trade (Export and Import Administration). The application consists of:
– An application form for import quota allocation (the form in Appendix III to this Circular).
– a) 01 copy of the Certificate of investment or Certificate of Business registration and 01 copy of the Certificate of Tax Code Registration that bear the certification and seal of the trader.
b) The time for considering allocation of tariff-rate quotas to traders shall be agreed by the Ministry of Industry and Trade and relevant Ministries.
The license for import under tariff-rate quota shall be issued to the trader within 10 working days from the time mentioned above.
If the application is rejected, the Ministry of Industry and Trade shall send a written response providing the explanation to the trader.
c) The license for import under tariff-rate quota or the written response of the Ministry of Industry and Trade shall be sent to the address written on the application.
d) The trader shall present the license for import under tariff-rate quota issued by the Ministry of Industry and Trade to the Sub-department of Customs at the border checkpoint while following the import procedure. The amount of goods imported within the license is eligible for the preferential rates of import tax under tariff-rate quotas.
dd) Traders must send periodic reports and irregular reports on their import at the request of the Ministry of Industry and Trade (Export and Import Administration) using the form in Appendix IV enclosed herewith.
By the 30^th of every September, every trader must send a report (instead of a report of the third quarter) to the Ministry of Industry and Trade on the assessment of the import potential of the whole year, suggest increases or decreases of import quotas, or report the amount of goods they cannot import in order to share quotas to other traders.
Article 6. Import of motor vehicles
1. Used motor vehicles (including passenger cars, cargo trucks, pickup trucks, and specialized cars) may be imported if they have not been used for more than 05 years from the manufacturing year (e.g. only the motor vehicles manufactured in 2009 and later may be imported in 2014). Other regulations shall be implemented in accordance with the instructions of relevant Ministries.
The import of passenger cars with fewer than 16 seats must comply with the Circular No. 03/2006/TTLT-BTM-BGTVT-BTC-BCA dated March 31, 2006 of the Ministry of Trade, the Ministry of Transport, the Ministry of Finance, and the Ministry of Industry and Trade on import of used passenger cars with fewer than 16 seats, and the Circular No. 19/2009/TT-BCT dated July 07, 2009 of the Minister of Industry and Trade on amendments to the Circular No. 03/2006/TTLT-BTM-BGTVT-BTC-BCA.
2. It is prohibited to import right-hand-drive vehicles (wrong-hand-drive vehicles), including knocked-down kids and those transformed before import to Vietnam, except for the right-hand-drive vehicles that are used within a small area including crane trucks, canal digging machines, road sweeper lorries, spraying lorries, garbage trucks, mobile workshops, airport buses, forklifts, concrete-pump trucks, and golf carts.
3. It is prohibited to import motor vehicles and knocked-down kits of which the structures or functions have been changed, or the chassis numbers, engine number have been changed in any shape or form.
4. It is prohibited to knock down a motor vehicle during transport and import.
5. It is prohibited to import used ambulances.
Article 7. Import, export, and temporary import of ozone-depleting substances
The import, export, and temporary import of ozone-depleting substances shall comply with the Circular No. 47/2011/TTLT-BCT-BTNMT dated December 30, 2011 of the Ministry of Industry and Trade and the Ministry of Natural Resources and Environment on import, export, and temporary import of ozone-depleting substances in accordance with the Montreal Protocol on Substances that Deplete the Ozone Layer.
Article 8. Import of cigarettes and cigars
1. The import of cigarettes and cigars for sale in the home market must comply with the Circular No. 37/2013/TT-BCT dated December 30, 2013 of the Minister of Industry and Trade on import of cigarettes and cigars.
2. The import of cigarettes and cigars for sale in the duty-free shops must comply with the Circular No. 02/2010/TT-BCT dated January 14, 2010 of the Ministry of Industry and Trade on import of tobacco for sale as duty-free goods, and the Circular No. 10/2011/TT-BCT dated March 30, 2011 of the Ministry of Industry and Trade on amendments to and removal of some export and import procedures according to the Government’s Resolution No. 59/NQ-CP dated December 17, 2010 on simplification of  administrative procedures under the management of the Ministry of Industry and Trade.
Chapter III

GOODS PROCESSING AND TRANSIT

Article 9. Processing goods of foreign origins
The processing of goods of foreign origins shall comply with Chapter VI of the Decree No.187/2013/ND-CP and the following regulations:
1. The goods imported under licenses for experiments and goods imported by importers appointed by Ministries and ministerial agencies according to Appendix II of the Decree No.187/2013/ND-CP must not be processed for export.
2. Only the traders that satisfy all of the requirements for manufacturing and selling the goods in the list of goods sold on conditions compiled by relevant Ministries and ministerial agencies may process them for export.
3. The contracts to process goods exported or imported under licenses may only be signed with foreign traders after such licenses are issued by the Ministry of Industry and Trade.
The trader shall send a written request for the license for goods processing, specifying the information mentioned in Article 29 of the Decree No. 187/2013/ND-CP enclosed with a certification of the regulatory Ministry to the Ministry of Industry and Trade (Export and Import Administration).
The Ministry of Industry and Trade shall issue the license within 10 working days from the receipt of the written request and the certification of the regulatory Ministry. If the request is rejected, the Ministry of Industry and Trade shall send a written request that contains the explanation to the trader
c) The license or the written response of the Ministry of Industry and Trade shall be sent to the address written on the request.
Article 10. Transit of goods through Vietnam
1. The transit of goods through Vietnam must comply with Chapter VII of the Decree No.187/2013/ND-CP
2. The transit of goods of China, Laos, and Cambodia through Vietnam must respectively comply with:
a) The Decision No. 0305/2001/QD-BTM dated March 26, 2001 of the Ministry of Commerce (now the Ministry of Industry and Trade), which promulgates the Regulation on transit of goods of China through Vietnam.
b) The Decision No. 22/2009/TT-BCT dated August 04, 2009 of the Minister of Industry and Trade on transit of goods of Laos through Vietnam.
c) The Decision No. 08/2009/TT-BCT dated May 11, 2009 of the Minister of Industry and Trade on transit of goods of Cambodia through Vietnam.
Chapter IV

IMPLEMENTATION

Article 11. Transition
The export and import licenses that are issued before the Decree No. 187/2013/ND-CP  and this Circular takes effect are still in force until they expire or until they are no longer extended by competent authorities.
Article 12. Effect
1. This Circular takes effect on February 20, 2014. The following documents are abolished:
a) The Circular No. 04/2006/TT-BTM dated April 06, 2006 of the Ministry of Commerce providing guidance on the Government’s Decree No. 12/2006/ND-CP dated January 23, 2006, which elaborates the regulations of the Law on Commerce on international trade.
b) Clause 1, Clause 2 Article 1, Appendix I and Appendix II of the Circular No. 10/2011/TT-BCTdated March 30, 2011 of the Minister of Industry and Trade on amendments to and removal of some export and import procedures according to the Government’s Resolution No. 59/NQ-CPdated December 17, 2010 on simplification of the administrative procedures under the management of the Ministry of Industry and Trade.
2. The difficulties that arise during the implementation of this Circular should be reported to the Ministry of Industry and Trade for consideration./.
 

APPENDIX I

LIST OF USED GOODS BANNED FROM IMPORT
I. INSTRUCTIONS
This list is compiled according to the list of exports and imports of Vietnam and the Export Tax Schedule and Import Tax Schedule. The list is used as follows:
1. When a 4-digit code is enumerated, all articles with 8-digit codes in the same 4-digit heading are banned from import.
2. When a 6-digit code is enumerated, all articles with 8-digit codes in the same 6-digit subheading are banned from import.
3. When a 8-digit code is enumerated, only the articles with that 8-digit codes are banned from import.
4. The parts and components used consumer goods banned from imports are also banned from import.
5. This list is used to implement Appendix I to the Government’s Decree No. 187/2013/ND-CPdated November 20, 2013.
II. LIST OF USED CONSUMER GOODS BANNED FROM IMPORT

III. LIST OF USED VEHICLES BANNED FROM IMPORT

IV. LIST OF USED MEDICAL EQUIPMENT BANNED FROM IMPORT

APPENDIX II

LIST OF GOODS THAT AFFECT NATIONAL DEFENSE AND SECURITY
I. INSTRUCTIONS
This list is compiled according to the list of exports and imports of Vietnam and the Export Tax Schedule and Import Tax Schedule. The list is used as follows:
1. When a 4-digit code is enumerated, all articles with 8-digit codes of that 4-digit heading are included.
2. When a 6-digit code is enumerated, all articles with 8-digit codes in the same 6-digit subheading are included.
3. When a 8-digit code is enumerated, only the articles with that 8-digit codes are included.
II. DETAILED LIST